EFTA01130642.pdf

PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM FOR HUNAN R I GHTS Section III: Alternatives to Asylum 58 EFTA01130642  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 1. Withholding of Removal Another type of protection available to individuals fleeing persecution, though not as beneficial as asylum, is withholding of removal. INA § 241(b)(3); 8 USC § 1231(b)(3). Unlike asylum, withholding is not subject to a one-year filing deadline. In addition, withholding is Tip! Withholding of a mandatory form of relief; not discretionary like asylum. Withholding removal should always is usually sought in the following situations: the client filed after the be sought in the one year deadline and does not have legally sufficient reasons for alternative when filing doing so, or the client has committed an aggravated felony, making for asylum. him or her ineligible for asylum; or there are negative factors in the client's past such as a criminal history that is not felonious but which makes a discretionary grant of asylum questionable; or the client is ineligible for asylum due to other factors. The benefits under withholding are limited. An individual who is granted withholding cannot be removed from the United States to the country from which he or she was fleeing persecution, but can be removed to a third country if one is available. The individual may not adjust his or her status to legal permanent residency, but can obtain work authorization. The individual is also not eligible for family reunification. Further, those granted withholding of removal only are not eligible for a refugee travel document or provided with permission to re-enter the United States without securing advance parole — effectively requiring the person to remain in the United States to maintain status. A grant of withholding of removal is country specific, and requires the Judge to enter an order of removal if that is the only relief granted. Matter of 1-5- & C-S-, 24 l&N 432 (MA 2008). Therefore the order frequently is "Client is ordered removed to any country other than X (country of citizenship/nationality)." If the client in fact has status or is able to be removed to another country, that removal order can be executed. Withholding simply protects the client from removal to the country where he or she fears persecution. Test for Withholding of Removal In order to satisfy the test for withholding of removal, an individual must show a clear probability of persecution by the government or a group the government cannot control on account of one of the protected grounds. INS v. Stevic, 467 U.S. 407 (1984). This is a more difficult burden (greater than 50% chance of persecution) to meet than that for asylum. As in asylum, however, if the individual can show that she suffered persecution in the past, then that individual will receive the benefit of a presumption of a well-founded fear of future persecution. Further, withholding of removal is mandatory if the individual meets the above clear probability test and establishes that he or she is not barred from eligibility. Bars to Eligibility for Withholding of Removal An individual is not eligible for withholding of removal if he or she: 1. Is a persecutor; or 2. Has been convicted of a particularly serious crime. Matter of Y-L, A-G-, R-S-R-, 23 l&N Dec. 270. (A.G. 2002). An aggravated felony conviction does not automatically bar an applicant from withholding of removal unless he received a sentence of five or more years, imposed or suspended. An aggravated felony is presumed to be "particularly serious." See INA § 241 (b)(3)(8). Again, other crimes not rising to the level of an 59 EFTA01130643  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM aggravated felony may also bar an individual from withholding of removal if found to be particularly serious. In determining whether a crime is particularly serious, the court will consider: a. The nature of the crime, i.e. was it against a person or property; b. The circumstances surrounding the crime; and c. The length of the sentence. Tipl Increasingly, Withholding of Removal is being offered by the counsel for the government (Office of Chief Counsel) in certain asylum cases as a sort-of "plea bargain." It is important to discuss the benefits and drawbacks of withholding with your client in removal proceedings prior to the final hearing so that he or she understands the difference between withholding and asylum. Particularly where the client has family members overseas that he or she may wish to petition to bring to the U.S., withholding is a less attractive option and may not benefit the client. Furthermore, clients granted withholding of removal are now regularly referred to the Detention and Removal section of Immigration and Customs Enforcement for a "custody review" which may result in the client being placed on an electronic monitoring program or being required to comply with monthly in-person check-ins, or other requirements, including applying for a passport from third countries. 60 EFTA01130644  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 2. Convention Against Torture/Deferral of Removal The United Nations Convention against Torture and Other Cruel, Inhuman Or Degrading Treatment or Punishment (CAW prohibits the return of a person to a country where substantial grounds exist for believing that he or she would be in danger of being subjected to torture. Matter of V-L, A-G-, R-S-R-, 23 l&N Dec. 270 (A.G. 2002); See also Matter of S-V-, 22 I.&N. Dec. 1306 (WA 2000). The ability to raise a claim for relief from removal under the CAT was incorporated into U.S. domestic immigration law. See 8 U.S.C. § 1231. A CAT claim may be raised even after a final order of removal/deportation has been issued. Tipl The advantage to CAT is that There are two separate types of protection under CAT. there are no bars to eligibility. See 8 C.F.R. § 208.16 - 17. The first type of protection is a Therefore, since the treaty itself does form of withholding under CAT. Withholding under CAT not contain any bars to its mandate of prohibits the return of an individual to his or her home non-return, aggravated felons can country. It can only be terminated if the individual's case make claims for relief if they fear is reopened and the DHS establishes that the individual is torture. Additionally, an applicant is no longer likely to be tortured in his or her home country. not required to establish his or her The second type of protection is called deferral of fear if torture is on account of race, removal under CAT. religion, nationality, political opinion, or membership in a social group. Deferral of removal under CAT is a more temporary form of relief. De erral of removal under CAT is appropriate for individuals who would likely be subject to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. It is terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his or her home country. Additionally, if an individual were granted deferral of removal under CAT, the DHS would still be able to detain an individual already subject to detention. Like withholding of removal, the benefits to CAT are limited. An individual with a successful CAT claim cannot be removed from the United States to the country from which he or she fled persecution, but can be removed to a third country if one is available. The individual may not adjust his or her status to legal permanent residency, but can obtain work authorization. Further, a person granted relief under CAT has no opportunity for family reunification or travel outside the United States. Definition of Torture Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind...when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, (annex, 39 U.N. GAOR Stipp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)I, entered into force June 26, 1987. 61 EFTA01130645  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM official capacity. CAT, Art. 1., 8 C.F.R. § 208.18. The Board of Immigration Appeals interpreted the definition of torture as "an extreme form of cruel and inhuman punishment and (that] does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment." Matter ofFE- 23 I&N Dec. 291 (WA 2002). The Board also found that indefinite detention, without further proof of torture, does not constitute torture under this definition. Id. The standard of proof under CAT is higher than the standard for asylum. Here, the alien must prove that it is "more likely than not" that he or she would be tortured if forced to return. Matter of G-A-, 23 I&N Dec. 366 (BIA 2002). The evidentiary proof for torture is very similar to the proof for asylum or withholding claims. All relevant considerations are to be taken into account, including, where applicable, the existence in the state concerned of a "consistent pattern of gross, flagrant or mass violations of human rights." Procedure for Raising CAT Claims Individuals seeking relief under the CAT must bring their Tipl Remember that relief under claim before an Immigration Judge. The procedure for the Convention Against Torture is filing a claim under the CAT will differ depending on not as beneficial as asylum. Thus, certain factors, including the status of an individual's case. we recommend that you include a CAT claim in the alternative while If your client is filing for asylum, he or she would request seeking asylum. If you believe that relief under withholding of removal and CAT in his or her your client has a potential CAT 1-589 asylum application and should include the following claim, please contact The Advocates information: for further information. • The type of torture he or she is likely to experience if forced to return to his or her country; • Any past instances of torture that he or she has experienced; • Any past instances of torture experienced by close family members and associates; and • Documentary support showing related human rights abuses by the government of his or her country, such as the U.S. State Department's Human Rights Country Reports, Amnesty International Reports, Human Rights Watch reports, and reports from other human rights monitoring groups. If your client has already filed an 1-589 but did not mention withholding of removal and CAT, she should supplement the application with the above information. 62 EFTA01130646  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 3. Voluntary Departure Individuals who do not qualify for any of the aforementioned forms of relief may qualify for voluntary departure. INA § 2408. Voluntary departure permits an individual, who is otherwise removable, to depart from the U.S. at his or her own expense within a designated amount of time in order to avoid a final order of departure. However, voluntary departure is not available in all cases. INA § 2408(c}. Voluntary departure may be preferable to a final removal order for a number of reasons. If an individual is issued a removal order he or she may be barred from reentering the U.S. for up to twenty years and may be subject to civil and criminal penalties if he or she enters without proper authorization. If the individual voluntarily departs within the time ordered by the court, he or she will not be barred for legally reentering in the future. In addition, an individual with a final removal order is barred from applying for ten years for CautionI If your client is granted voluntary departure in lieu of removal cancellation of removal, adjustment of status and other from the United States and appeals the immigration benefits. Immigration Judge's denial of asylum, the voluntary departure period will be It is important to exercise caution in agreeing to stayed until the Board of Immigration voluntary departure. If the individual fails to depart, he Appeals issues a decision. If your client or she will be barred from applying for adjustment of petitions for review to a federal court, status, cancellation of removal, voluntary departure, the voluntary departure period is not change of status and any other benefits for a period of automatically stayed and could expire, ten years and can be subject to monetary fines up to affecting your client's ability to obtain $5000.00. INA § 240B(di. In the past, voluntary other immigration benefits in the United States. Please discuss with your departure was applied for in almost any case in which consulting attorney or The Advocates, if the applicant was eligible. However, now that appeals this is or may be your client's situation. are longer and more protracted, voluntary departure may result in more harm to the client's options. Particularly in cases where a client may be considering alternative immigration options, such as a petition by a spouse or family member, the penalties for overstaying the voluntary departure order will detrimentally affect his or her ability to acquire status through the other options. An individual may apply for voluntary departure either prior to the Master Calendar hearing or at the conclusion of proceedings, provided that the individual meets the necessary requirements. Voluntary Departure through Withdrawal of Asylum Application If the application for voluntary departure is made prior to, or at the Master Calendar hearing, the individual must show that he or she: • Waives or withdraws all other requests for relief; • Concedes removability; • Waives appeal of all issues; • Has not been convicted of an aggravated felony and is not a security risk; and • Shows clear and convincing evidence that he or she intends and has the financial ability to depart 63 EFTA01130647  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM If the individual is able to meet these requirements, then the Immigration Judge may grant a voluntary departure period of up to 120 days at the time of the Master Calendar hearing. See INA 4240B (a) 8 C.F.R. §240.25. The Judge may not grant voluntary departure under 8 C.F.R. §240.26(b)(E)(ii) beyond 30 days after the Master Calendar at which the case is initially scheduled, except pursuant to a final stipulation. Voluntary Departure as an Alternative to a Removal Order An individual may also apply for voluntary departure after Tip! Clients will be required to the conclusion of proceedings, provided that the present a valid, unexpired passport individual meets the following requirements: and clear and convincing evidence • Shows physical presence for one year prior to of eligibility to enter a third country the date the Notice to Appear was issued; to qualify for voluntary departure. • Shows clear and convincing evidence that he or she intends and has the financial ability to depart; • Pays a bond of $500-$2000 within 5 calendar days of the judge's decision; • Shows good moral character for five years prior to the application; and • Presents to the DHS a valid passport or other travel document sufficient to show lawful entry into his or her country, unless such document is already in the possession of the DHS or is not needed in other to return to his or her country. If the client meets these requirements, the Immigration Judge may grant voluntary departure for a period of up to 60 days. See INA § 2408(b); 8 C.F.R. § 240.11(bl. 64 EFTA01130648  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 4. Temporary Protected Status Temporary Protected Status (TPS) is available to individuals whose home countries have been designated by the Attorney General as unable to handle the return of their nationals. In order to receive TPS, an individual must prove that he or she: • Is a citizen or national of the designated country • Was in the United States on or before the date of the designation • Has been residing continuously in the United States since the designation. Individuals with TPS are permitted to work and may not be deported during the period of protection. Those who qualify for TPS must register with the government every year in order to receive and maintain TPS status. The government can deny TPS status to anyone failing to register in a timely manner. Asylum applicants who qualify for TPS should consider filing and maintaining TPS. There is no conflict between the two applications, and should asylum be denied, TPS would allow the individual to remain and work in the United States so long as TPS is designated for their country. The Attorney General designates the amount of time, usually 6 to 18 months, during which time individuals from particular countries will be afforded protection. The Attorney General may renew TPS designation for a particular country if he or she is convinced that unsafe conditions in the country persist. When TPS expires, the applicant may receive a Notice to Appear and be placed in removal proceedings. The attorney and client must therefore weigh the risks and benefits to applying for TPS. Because TPS is granted for short periods of time, you should consult the Dal TPS Website to verify which countries are currently designated for TPS. As of March, 2010, the following countries were designated for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan. Also, Liberians can take advantage of Deferred Enforced Departure until September 30, 2011. If you have a client from any of these named countries, check the USCIS website for eligibility requirements. Applying for TPS or a Renewal of TPS To file for TPS for the first time or for a renewal Form l- Tip! Please review the instructions on the USCIS website and form 821, Application for Temporary Protected Status and Form carefully if you are assisting a clientI-765, Application for Employment Authorization must be with TPS as changes occur from submitted. The I-765 is used for information gathering year to year. purposes, and must accompany the TPS application, regardless of whether work authorization is actually sought. If work authorization is not sought, or if employment has already been authorized, no fee is required for the employment authorization form. If work authorization is sought, then the fee (or fee waiver request with affidavit in accordance with 8 C.F.R. 6 244.20) must be submitted with the I-765. The Advocates is available to assist clients with the filing of their TPS applications, as are a number of free walk-in clinics. Please also note that someone who did not file when TPS was originally designated may still be qualify for a late filing exception. 65 EFTA01130649  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 5. "T" Visas for Victims of Trafficking In October 2000, Congress signed into law the Victims of Trafficking and Violence Protection Act of 2000. This law created a new visa, the "T" visa, which intends to protect victims of "severe forms of trafficking." This includes victims of sex trafficking, who were recruited, harbored or transported for the purpose of commercial sex acts such as prostitution. It may also include individuals who were recruited, harbored or transported for labor services, involuntary servitude, slavery or debt bondage through the use of force, fraud or coercion. To be eligible for a "T" visa the applicant must show the following: • The applicant is or has been a victim of a severe form of trafficking; • The applicant is present in the United States on account of such trafficking; • The applicant has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, or has not attained 18 years of age; and • The applicant would suffer extreme hardship involving unusual and severe harm if removed from the United States. The Act provides for 5000 "T" visas to be awarded each year. Tip! Please contact The The law also provides that victims of trafficking who are detained Advocates if you believe should be housed in appropriate facilities, not in correctional your client is a victim of facilities. It also mandates that DHS provide the necessary trafficking. The Advocates is medical care and protection from the traffickers. Victims of able to provide appropriate severe forms of trafficking need not have obtained a "T" visa to referrals. be eligible for certain public benefits. However, the Office of Refugee Resettlement must certify them as "victims of a severe form of trafficking." 66 EFTA01130650  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 6. "U" Visas for Victims of Criminal Activity The Victims of Trafficking and Violence Protection Act of 2000 also created the "U" visa, for immigrant victims of certain criminal activity who assist law enforcement in the investigation or prosecution of the crime. Potential applicants must meet the following criteria: • Suffer substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity; • Be in possession of information about the criminal activity Tip! Please contact The of which he or she was a victim; Advocates if you believe your client is a victim of a • Be of assistance to a Federal, State or local law crime and may qualify for a enforcement agency or prosecutor or a Federal or State U visa. The Advocates is Judge or the Department of Homeland Security or other able to provide appropriate Federal, State or local authority investigating or referrals. prosecuting criminal activity; and • The criminal activity must have violated U.S. law or occurred in the U.S. See INA § 101(a)(15)(U)(i). The particular crimes that qualify under the U visa regulations are listed at INA § 101(a)(15) 67 EFTA01130651  PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 7. Violence Against Women Act (VAWA) Relief In 2005, Congress reauthorized the Violence Against Women Act. The law grants immigration exemptions to abused immigrant women and children. The Act gives women a chance to petition for exemptions to INA § 245(c), which prohibits immigrants who accept "unauthorized employment prior to filing an application for adjustment of status." To be eligible for this exemption, women must show that they were victims of domestic violence in the United States by showing that: • "The marriage or the intent to marry the U.S. citizen was entered into in good faith" by the petioner; and • During the relationship the petitioner or child of the petitioner was battered or was "the subject of extreme cruelty perpetrated by the (petitioner's] spouse." Second preference immigration status is given to petitioners married to lawful permanent residents. This applies to women who: • Are "the spouse of a lawful permanent resident of the United States; or" • Believed that he or she married a lawful permanent resident of the United States, where the marriage was illegitimate because of bigamy; or • Are the spouse of a lawful permanent resident of the United States whose status ended within the past two years due to domestic violence; or • "Demonstrates a connection between the legal termination of the marriage within the past [two] years and battering or extreme cruelty by the lawful permanent resident spouse." The period of continuous physical presence does not end for VAWA petitioners when USCIS notifies them that they are being placed in removal proceedings. The period of continuous presence also does not end if the petitioner was absent from the U.S. as a result of domestic violence. 68 EFTA01130652 PRO BONO ASYLUM REPRESENTATION MANUAL SECTION III: ALTERNATIVES TO ASYLUM 69 EFTA01130653